'1. Before me for determination is a summons for rectification of grant dated 18th November 2024. Brought under section 74 of the law of Succession Act and rule 43(1) of Probate and Administration rules. The applicant is seeking orders that:
a) The Applicant herein LYDIAH KEMUNTO MANGERA be substituted in place of PAUL OMARI NYAMWEYA, the deceased beneficiary.
b) Upon granting prayer one (1) above, may the Honourable Court be pleased to issue an amended certificate of confirmation of grant with the name of LYDIAH KEMUNTO MANGERA, Applicant holding in trust for beneficiary(s) of the estate of PAUL OMARI NYAMWEYA.
c) The Honourable Court be pleased to revoke the certificate of confirmation of grant issued to the Petitioner/Respondent on the 30th day of October, 2000.
d) Upon granting prayer three (3) above, the Honourable court be pleased to confirm and issue a new certificate of confirmation of grant within 30 days.
e) The Honourable court be pleased to order and/or direct the current administrator to render an account of the estate of the deceased person herein.
f) Costs of this application be provided for.
2. The application is based on the grounds that:
a) The Applicant is a daughter-in-law to the Petitioner/Respondent, being wife to PAUL OMARI NYAMWEYA (now deceased) son to the Petitioner/Respondent herein.
b) The said PAUL OMARI NYAMWEYA died on the 8th day of April, 2024 leaving a wife, the Applicant herein and one child TERRYAN KERUBO NYAMWEYA.
c) The Petitioner/Respondent filed the instant succession cause upon obtaining consent of her children including the late PAUL OMARI NYAMWEYA sometimes in the year 1999.
d) The grant issued in the instant succession cause was confirmed on the 30th day of October, 2000
e) All the beneficiaries to the estate of the deceased herein were given their shares indicated in the certificate of confirmation of grant.
f) The beneficiaries of the deceased estate were allocated their shares of the property being Land Parcel No. NYARIBARI CHACHE/B/B/BOBURIA/3221 on the ground, which were well demarcated measuring 0.56Ha.
g) The Petitioner/Respondent deliberately caused her late husband''s shares to be registered in the name of her brother-in-law ROBERT NYAGWENCHA NYAMWEYA.
h) The said ROBERT NYAGWENCHA NYAMWEYA is now threatening to evict her with her daughter from the said parcel of land which was allocated to her late husband.
i) There is urgent need of the intervention of this Honourable Court in order to protect the estate of her deceased husband by revoking the certificate of confirmation of grant and issuing an amended certificate of confirmation of grant for proper execution.
3. Further grounds were adduced in the affidavit of Lydiah Kemunto Mangera, which state that:
a) The deceased John Moriango Nyamweya was her father-in-law having been married to his son Paul Omari Nyamweya, who also died after the grant was confirmed. A copy of the death certificate was annexed as LKM-1.
b) The said sons of the deceased, including the husband to the applicant, have their portions identifiable on the ground and that her said late husband constructed rental houses on his portion.
c) The petitioner transferred the portions to all other sons of the deceased except her husband who was living and working away from home but had his portion on the ground .
d) Her brother-in-law ROBERT NYAGWENCHA NYAMWEYA threatens to evict her and her daughter from the said portion of land allocated to her late husband claiming that the same is registered in his name and therefore belongs to him.
e) She has obtained letters of administration ad litem to the estate of her deceased husband hence has the requisite locus standi to be substituted in place of her late husband as a beneficiary and have his portion registered in her name to hold in trust for her daughter. A copy of the letters of administration ad litem is annexed and marked as exhibit LKM- 2.
f) She requests the Honourable Court to revoke the certificate of confirmation of grant issued to the Petitioner/Respondent herein since it was not properly executed and issue an amended certificate of confirmation of grant, including her name as a beneficiary in place of her deceased husband.
g) She further requests the Honourable Court to order cancellation of the resultant parcels of land, which are a sub-division of land parcel number NYARIBARI CHACHE B/B/BOBURIA/3221 and revert the same to the original number that is NYARIBARI CHACHE B/B/BOBURIA/3221 for proper distribution and administration of the deceased''s estate.
ISSUES FOR DETERMINATION
4. The issues arising for determination are:
a) Whether the certificate of confirmation of grant can be revoked
b) Whether the certificate of confirmation of grant should be amended to replace the name of the deceased beneficiary with that of the applicant
c) Whether the administrator should be issued with a notice to show cause
ANALYSIS AND DETERMINATION
Whether the certificate of confirmation of grant can be revoked
5. Regarding revocation of confirmed grants, it was stated in the case of In re Estate of Kiberenge Mukwa (Deceased) [2021] eKLR that:
[14]. What is sought to be revoked here is not the grant itself, but the certificate that was issued upon the confirmation of the grant. In principle, the Appellant appears to be unhappy with the confirmation process. That is what comes out from the body of the record of appeal and her written submissions. The principal prayer in the application is for revocation of the certificate of confirmation of grant.
[15]. The power or discretion given to the court by section 76 of the Law of Succession Act is for revocation of grants of representation. The Law of Succession Act does not define grant of representation, as the section that carries definitions or interpretations of terms or words used in the Act, that is to say section 3, does not include the word or term “grant”. The Probate and Administration Rules, the subsidiary legislation made under the Law of Succession Act does define the term, at Rule 2, in the following words:““grant” means a grant of representation, whether a grant of probate or of letters of administration with or without a will annexed, to the estate of a deceased person.”……
19. In any event, as the certificate of confirmation of grant is a mere formal expression of the orders made by the court on a confirmation application, the revocation of the certificate, if at all it is revocable under section 76, which I continue to assert that it is not, would be of little consequence, as it is only the certificate that would be affected by such a revocation order, since the orders on confirmation, from which it is extracted would remain intact. The certificate is a mere extract, its revocation would not affect its source, the orders of confirmation of grant. A grant of representation is not equivalent to a certificate, it is not an extract from some order, and it is the order itself, appointing administrators, and it is the court granting representation. The orders on confirmation of a grant remain unaffected by a revocation or annulment of the certificate of confirmation of grant. The proper thing to do should be to have the confirmation orders vacated and thereafter the certificate of confirmation of grant annulled, following the setting aside of the orders from which it draws its life. Otherwise, failure to vacate the orders would mean that a fresh certificate could still be extracted from the same orders. The grant of representation and the certificate of confirmation of grant are two separate or different things
6. In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR), it was stated that:
“17. I have very closely perused through the provisions of the Law of Succession Act, and I have not come across any provision that provides a remedy to a person who is aggrieved by confirmation orders. Sections 71, 72 and 73 of the Law of Succession Act, which deal with confirmation of grants, do not address the question of redress for parties who are unhappy with the confirmation process, nor do they deal generally with flaws in the confirmation process. As stated above, section 76 has nothing to do with the confirmation process, and provides no relief at all to any person unhappy with the confirmation process. In the absence of any provision in the Law of Succession Act, for relief or redress for persons aggrieved by such orders, the aggrieved parties have only two recourses under general civil law, that is to say appeal and review, to the extent that the same is permissible under the Law of Succession Act. I would believe that one can also apply for the setting aside or vacating of confirmation orders, where the same are obtained through abuse of procedure.”
7. Regarding the above stipulations, it is evident that a grant of representation and a certificate of confirmation of grant are two different things. That for revocation of a certificate of confirmation one has to either approach the court through an appeal or review to the extent that it is permissible under the law of succession act. The applicant is seeking revocation of the certificate of confirmation of grant by filing a summons for rectification of grant. This is the wrong procedure, and the applicants have not properly approached the court. They should file the appropriate application to seek that order.
Whether the certificate of confirmation of grant should be amended to replace the name of the deceased beneficiary with that of the applicant
8. The application was bought under section 74 of the law of Succession Act, which states that:
“Errors in names and descriptions, or in setting out the time and place of the deceased''s death, or the purpose in a limited grant, may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.”
In that regard in the case of; In the matter of the Estate of Hasalon Mwangi Kahero (2013) eKLR the court stated as follows –
“An error is essentially a mistake. For the purposes of Section 74 and Rule 43, it must relate to a name or description or time and place of the deceased''s death, or the purpose of a limited grant. Is an omission of a name or in the description of a thing an error? It would be an error if say a word in the full name of a person is omitted or a word or number or figure in a description is omitted. But where the full name of a person or a full description of a thing or property is omitted, it would be stretching the meaning of the word “error” too far to say that that would amount to the error or mistake envisaged in Section 74 and Rule 43.
In Re Estate of David Karimi Kanegeni -Deceased [2019] eKLR, the High Court stated that “rectification of grant applies to correct errors which can be done without affecting the substance of the grant”.
In regard to the above stipulations. I find that substitution of names does not fall under the provisions of section 74 of the law of succession act and rule 43 of probate and administration rules.
9. Regarding substitution of a name of the deceased with that of his/her beneficiary, it was stated in the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR) that:
17. It is also important to point out that a deceased’s estate has to be shared to those named in the certificate of confirmation. In this case, the name in the certificate of confirmation is that of Rachel Kanyangi. There is also the name of Philimona Sagala Kisigwa who is said to be deceased. If indeed Philimona be deceased, it is upto the family of that particular deceased beneficiary to take a grant of representation of the beneficiary’s estate and on being confirmed, approach the petitioner to seek a rectification of the grant, and give that share to the beneficiaries of the deceased beneficiary, otherwise, the share of that deceased beneficiary will remain in his name.
From the above case, before a name is substituted, one has to take a grant of letters of representation of the deceased’s estate and have them confirmed. In the case herein, the applicant has not submitted to court a confirmed grant of representation of the deceased estate. Therefore, the name of the deceased remains as it is and cannot be substituted with that of the applicant.
10. From the foregoing , Prayers 1 – 4 must fail .
Whether the administrator should be issued with a notice to show cause
11. Section 83 (1) of the Law of Succession is explicit as to the duties of an administrator.
“It is ….to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.”
12. Section 51(2) of the law of succession act empowers the Court to ensure the estate is distributed in accordance with the confirmed grant, which reflects the final decision on the distribution of the deceased’s estate. Further, Section 83(b) of the Act mandates that the administrator to ensure the property is distributed according to the confirmed grant. Section 55 of the Act on the other hand directs that the Administrator must ensure equitable and just distribution, avoiding actions that disadvantage any beneficiary.
13. The applicant alleges that the administrator failed to transfer the title of the portion belonging to her husband to him, but rather made the transfer to his brother, Robert. The alleged transfer is not supported by any document. The respondents did not file any response. The administrator has not rendered an account of the completion of the administration of the estate herein as per the confirmed grant 25 years down the line .I proceed to allow the application in terms of prayer 5 of the application. I therefore order that the administrator to render an account of the estate of the deceased within 14 days from today. Mention on 24.10.25 be issued with a notice to show cause. Costs to the applicant .
T.A ODERA
JUDGE
2.10.25
DELIVERED VIRTUALLY IN THE PRESENCE OF CA ; KIPCHIRCHIR
PARTIES ABSENT .
'
a) The Applicant herein LYDIAH KEMUNTO MANGERA be substituted in place of PAUL OMARI NYAMWEYA, the deceased beneficiary.
b) Upon granting prayer one (1) above, may the Honourable Court be pleased to issue an amended certificate of confirmation of grant with the name of LYDIAH KEMUNTO MANGERA, Applicant holding in trust for beneficiary(s) of the estate of PAUL OMARI NYAMWEYA.
c) The Honourable Court be pleased to revoke the certificate of confirmation of grant issued to the Petitioner/Respondent on the 30th day of October, 2000.
d) Upon granting prayer three (3) above, the Honourable court be pleased to confirm and issue a new certificate of confirmation of grant within 30 days.
e) The Honourable court be pleased to order and/or direct the current administrator to render an account of the estate of the deceased person herein.
f) Costs of this application be provided for.
2. The application is based on the grounds that:
a) The Applicant is a daughter-in-law to the Petitioner/Respondent, being wife to PAUL OMARI NYAMWEYA (now deceased) son to the Petitioner/Respondent herein.
b) The said PAUL OMARI NYAMWEYA died on the 8th day of April, 2024 leaving a wife, the Applicant herein and one child TERRYAN KERUBO NYAMWEYA.
c) The Petitioner/Respondent filed the instant succession cause upon obtaining consent of her children including the late PAUL OMARI NYAMWEYA sometimes in the year 1999.
d) The grant issued in the instant succession cause was confirmed on the 30th day of October, 2000
e) All the beneficiaries to the estate of the deceased herein were given their shares indicated in the certificate of confirmation of grant.
f) The beneficiaries of the deceased estate were allocated their shares of the property being Land Parcel No. NYARIBARI CHACHE/B/B/BOBURIA/3221 on the ground, which were well demarcated measuring 0.56Ha.
g) The Petitioner/Respondent deliberately caused her late husband''s shares to be registered in the name of her brother-in-law ROBERT NYAGWENCHA NYAMWEYA.
h) The said ROBERT NYAGWENCHA NYAMWEYA is now threatening to evict her with her daughter from the said parcel of land which was allocated to her late husband.
i) There is urgent need of the intervention of this Honourable Court in order to protect the estate of her deceased husband by revoking the certificate of confirmation of grant and issuing an amended certificate of confirmation of grant for proper execution.
3. Further grounds were adduced in the affidavit of Lydiah Kemunto Mangera, which state that:
a) The deceased John Moriango Nyamweya was her father-in-law having been married to his son Paul Omari Nyamweya, who also died after the grant was confirmed. A copy of the death certificate was annexed as LKM-1.
b) The said sons of the deceased, including the husband to the applicant, have their portions identifiable on the ground and that her said late husband constructed rental houses on his portion.
c) The petitioner transferred the portions to all other sons of the deceased except her husband who was living and working away from home but had his portion on the ground .
d) Her brother-in-law ROBERT NYAGWENCHA NYAMWEYA threatens to evict her and her daughter from the said portion of land allocated to her late husband claiming that the same is registered in his name and therefore belongs to him.
e) She has obtained letters of administration ad litem to the estate of her deceased husband hence has the requisite locus standi to be substituted in place of her late husband as a beneficiary and have his portion registered in her name to hold in trust for her daughter. A copy of the letters of administration ad litem is annexed and marked as exhibit LKM- 2.
f) She requests the Honourable Court to revoke the certificate of confirmation of grant issued to the Petitioner/Respondent herein since it was not properly executed and issue an amended certificate of confirmation of grant, including her name as a beneficiary in place of her deceased husband.
g) She further requests the Honourable Court to order cancellation of the resultant parcels of land, which are a sub-division of land parcel number NYARIBARI CHACHE B/B/BOBURIA/3221 and revert the same to the original number that is NYARIBARI CHACHE B/B/BOBURIA/3221 for proper distribution and administration of the deceased''s estate.
ISSUES FOR DETERMINATION
4. The issues arising for determination are:
a) Whether the certificate of confirmation of grant can be revoked
b) Whether the certificate of confirmation of grant should be amended to replace the name of the deceased beneficiary with that of the applicant
c) Whether the administrator should be issued with a notice to show cause
ANALYSIS AND DETERMINATION
Whether the certificate of confirmation of grant can be revoked
5. Regarding revocation of confirmed grants, it was stated in the case of In re Estate of Kiberenge Mukwa (Deceased) [2021] eKLR that:
[14]. What is sought to be revoked here is not the grant itself, but the certificate that was issued upon the confirmation of the grant. In principle, the Appellant appears to be unhappy with the confirmation process. That is what comes out from the body of the record of appeal and her written submissions. The principal prayer in the application is for revocation of the certificate of confirmation of grant.
[15]. The power or discretion given to the court by section 76 of the Law of Succession Act is for revocation of grants of representation. The Law of Succession Act does not define grant of representation, as the section that carries definitions or interpretations of terms or words used in the Act, that is to say section 3, does not include the word or term “grant”. The Probate and Administration Rules, the subsidiary legislation made under the Law of Succession Act does define the term, at Rule 2, in the following words:““grant” means a grant of representation, whether a grant of probate or of letters of administration with or without a will annexed, to the estate of a deceased person.”……
19. In any event, as the certificate of confirmation of grant is a mere formal expression of the orders made by the court on a confirmation application, the revocation of the certificate, if at all it is revocable under section 76, which I continue to assert that it is not, would be of little consequence, as it is only the certificate that would be affected by such a revocation order, since the orders on confirmation, from which it is extracted would remain intact. The certificate is a mere extract, its revocation would not affect its source, the orders of confirmation of grant. A grant of representation is not equivalent to a certificate, it is not an extract from some order, and it is the order itself, appointing administrators, and it is the court granting representation. The orders on confirmation of a grant remain unaffected by a revocation or annulment of the certificate of confirmation of grant. The proper thing to do should be to have the confirmation orders vacated and thereafter the certificate of confirmation of grant annulled, following the setting aside of the orders from which it draws its life. Otherwise, failure to vacate the orders would mean that a fresh certificate could still be extracted from the same orders. The grant of representation and the certificate of confirmation of grant are two separate or different things
6. In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR), it was stated that:
“17. I have very closely perused through the provisions of the Law of Succession Act, and I have not come across any provision that provides a remedy to a person who is aggrieved by confirmation orders. Sections 71, 72 and 73 of the Law of Succession Act, which deal with confirmation of grants, do not address the question of redress for parties who are unhappy with the confirmation process, nor do they deal generally with flaws in the confirmation process. As stated above, section 76 has nothing to do with the confirmation process, and provides no relief at all to any person unhappy with the confirmation process. In the absence of any provision in the Law of Succession Act, for relief or redress for persons aggrieved by such orders, the aggrieved parties have only two recourses under general civil law, that is to say appeal and review, to the extent that the same is permissible under the Law of Succession Act. I would believe that one can also apply for the setting aside or vacating of confirmation orders, where the same are obtained through abuse of procedure.”
7. Regarding the above stipulations, it is evident that a grant of representation and a certificate of confirmation of grant are two different things. That for revocation of a certificate of confirmation one has to either approach the court through an appeal or review to the extent that it is permissible under the law of succession act. The applicant is seeking revocation of the certificate of confirmation of grant by filing a summons for rectification of grant. This is the wrong procedure, and the applicants have not properly approached the court. They should file the appropriate application to seek that order.
Whether the certificate of confirmation of grant should be amended to replace the name of the deceased beneficiary with that of the applicant
8. The application was bought under section 74 of the law of Succession Act, which states that:
“Errors in names and descriptions, or in setting out the time and place of the deceased''s death, or the purpose in a limited grant, may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.”
In that regard in the case of; In the matter of the Estate of Hasalon Mwangi Kahero (2013) eKLR the court stated as follows –
“An error is essentially a mistake. For the purposes of Section 74 and Rule 43, it must relate to a name or description or time and place of the deceased''s death, or the purpose of a limited grant. Is an omission of a name or in the description of a thing an error? It would be an error if say a word in the full name of a person is omitted or a word or number or figure in a description is omitted. But where the full name of a person or a full description of a thing or property is omitted, it would be stretching the meaning of the word “error” too far to say that that would amount to the error or mistake envisaged in Section 74 and Rule 43.
In Re Estate of David Karimi Kanegeni -Deceased [2019] eKLR, the High Court stated that “rectification of grant applies to correct errors which can be done without affecting the substance of the grant”.
In regard to the above stipulations. I find that substitution of names does not fall under the provisions of section 74 of the law of succession act and rule 43 of probate and administration rules.
9. Regarding substitution of a name of the deceased with that of his/her beneficiary, it was stated in the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR) that:
17. It is also important to point out that a deceased’s estate has to be shared to those named in the certificate of confirmation. In this case, the name in the certificate of confirmation is that of Rachel Kanyangi. There is also the name of Philimona Sagala Kisigwa who is said to be deceased. If indeed Philimona be deceased, it is upto the family of that particular deceased beneficiary to take a grant of representation of the beneficiary’s estate and on being confirmed, approach the petitioner to seek a rectification of the grant, and give that share to the beneficiaries of the deceased beneficiary, otherwise, the share of that deceased beneficiary will remain in his name.
From the above case, before a name is substituted, one has to take a grant of letters of representation of the deceased’s estate and have them confirmed. In the case herein, the applicant has not submitted to court a confirmed grant of representation of the deceased estate. Therefore, the name of the deceased remains as it is and cannot be substituted with that of the applicant.
10. From the foregoing , Prayers 1 – 4 must fail .
Whether the administrator should be issued with a notice to show cause
11. Section 83 (1) of the Law of Succession is explicit as to the duties of an administrator.
“It is ….to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.”
12. Section 51(2) of the law of succession act empowers the Court to ensure the estate is distributed in accordance with the confirmed grant, which reflects the final decision on the distribution of the deceased’s estate. Further, Section 83(b) of the Act mandates that the administrator to ensure the property is distributed according to the confirmed grant. Section 55 of the Act on the other hand directs that the Administrator must ensure equitable and just distribution, avoiding actions that disadvantage any beneficiary.
13. The applicant alleges that the administrator failed to transfer the title of the portion belonging to her husband to him, but rather made the transfer to his brother, Robert. The alleged transfer is not supported by any document. The respondents did not file any response. The administrator has not rendered an account of the completion of the administration of the estate herein as per the confirmed grant 25 years down the line .I proceed to allow the application in terms of prayer 5 of the application. I therefore order that the administrator to render an account of the estate of the deceased within 14 days from today. Mention on 24.10.25 be issued with a notice to show cause. Costs to the applicant .
T.A ODERA
JUDGE
2.10.25
DELIVERED VIRTUALLY IN THE PRESENCE OF CA ; KIPCHIRCHIR
PARTIES ABSENT .
'